[J-41A-2023 and J-41B-2023] [MO: Donohue, J.] 

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

IN THE INTEREST OF: N.E.M. APPEAL 

OF : N.E.M., A CHILD IN CUSTODY

:

: 

: 

: 

: 

: 

: 

: 

: 

: 

:

No. 8 EAP 2023

Appeal from the Order of Superior 

Court entered on September 28, 

2022 at No. 86 EDM 2022 affirming 

the Order entered on August 11, 

2022 in the Court of Common Pleas, 

Philadelphia County, Juvenile 

Division at CP-51-JV-0000789-2022.

SUBMITTED: August 25, 2023

IN THE INTEREST OF: N.E.M. APPEAL 

OF : N.E.M., A CHILD IN CUSTODY

:

: 

: 

: 

: 

: 

: 

: 

: 

: 

:

No. 9 EAP 2023

Appeal from the Order of Superior 

Court entered on September 28, 

2022 at No. 87 EDM 2022 affirming 

the Order entered on August 11, 

2022 in the Court of Common Pleas, 

Philadelphia County, Juvenile 

Division, at C-51-JV000789-2022.

SUBMITTED: August 25, 2023

CONCURRING OPINION

JUSTICE DOUGHERTY DECIDED: March 21, 2024

I join the core legal holdings of the majority opinion — namely, (1) although this 

appeal is technically moot, it meets the “capable of repetition yet likely to evade review” 

mootness exception; and (2) Pennsylvania Rule of Appellate Procedure 1612 provides 

for an appeal as of right.

1 I write separately only to express my faith in the lower courts 

1 On this point, I add only that there is perhaps some ambiguity in Rule 1612, which 

provides: “The reviewing court shall not consider any challenge to the juvenile court’s 

selection of a specific agency or specific institution as the site of the out-of-home 

(continued...)
[J-41A-2023 and J-41B-2023] [MO: Donohue, J.] - 2

and my belief their decisions here, although at times mistaken, were not as “egregious” 

as the majority makes out. Majority Opinion at 19. 

Preliminarily, I agree with the majority that Pennsylvania Rule of Juvenile Court 

Procedure 512(D) lists the particular factual findings and conclusions of law the juvenile 

court must enter into the record. Specifically, the Rule provides:

D. Court’s Findings. The court shall enter its findings and conclusions of 

law into the record and enter an order pursuant to Rule 515. On the record 

in open court, the court shall state:

(1) its disposition;

(2) the reasons for its disposition;

(3) the terms, conditions, and limitations of the disposition; and

(4) if the juvenile is removed from the home:

(a) the name or type of any agency or institution that shall 

provide care, treatment, supervision, or rehabilitation of the 

juvenile;

(b) its findings and conclusions of law that formed the basis of 

its decision consistent with 42 Pa.C.S. §§6301 and 6352, 

including why the court found that the out-of-home placement 

ordered is the least restrictive type of placement that is 

consistent with the protection of the public and best suited to 

the juvenile’s treatment, supervision, rehabilitation, and 

welfare; and

(c) the provision of educational services for the juvenile 

pursuant to Rule 148;

(5) whether any evaluations, tests, counseling, or treatments are 

necessary;

(6) any findings necessary to ensure the stability and 

appropriateness of the juvenile’s education, and when appropriate, 

placement and instead may consider only a challenge to the fact that the placement is 

out-of-home.” Pa.R.A.P. 1612(c)(1) (emphasis added). Although “may” often connotes 

a permissive option (especially in contrast to the mandatory “shall”), its use in this Rule, 

which is defining the “[s]cope of review” is less clear-cut; it instead could be read as 

defining the type of challenge the Superior Court is allowed to consider when conducting 

its mandatory review. Id. The Rule might be ambiguous, but I agree with the majority’s 

interpretation, based on the Rule’s history, that it was intended to provide an appeal as 

of right. See Majority Opinion at 15-19.
[J-41A-2023 and J-41B-2023] [MO: Donohue, J.] - 3

the court shall appoint an educational decision maker pursuant to 

Rule 147; and

(7) any findings necessary to identify, monitor, and address the 

juvenile’s needs concerning health care and disability, if any, and if 

parental consent cannot be obtained, authorize evaluations and 

treatment needed.

Pa. R. Juv. C. P. 512(D). Though this rule is extensive, its mandate is plain: the juvenile 

court must discuss these points on the record in open court and enter an order pursuant 

to Rule 515.

I further agree the juvenile court here did not provide all of the information listed in

Rule 512(D)(4) when imposing N.E.M.’s out-of-home placement, and most significantly,

did not state why such placement was the “least restrictive type of placement that is 

consistent with the protection of the public and best suited to the juvenile’s treatment, 

supervision, rehabilitation, and welfare[.]” Id. Clearly, the court should have done more 

on the record to comply with the Rule, but I disagree that “[i]t made no effort to comply 

with the requirement for an on-the-record statement concerning N.E.M.’s disposition.” 

Majority Opinion at 20. Notably, at N.E.M.’s July 26, 2022 hearing, the juvenile court 

began by summarizing that it had adjudicated N.E.M. delinquent on July 1, 2022 on two 

separate petitions, the second one being a carjacking. See N.T. 7/26/2022 at 3.2 The 

court then explained such “[f]elonies have a presumption that the juvenile is in need of 

treatment, rehabilitation, and supervision.” Id.3 

2 I acknowledge the July 26, 2022 hearing transcript was not included in the certified 

record, but the juvenile court provided this transcript to the Superior Court upon N.E.M.’s 

request and the Superior Court’s order, so I reference it here. I additionally note the July 

1, 2022 hearing transcript is also missing from the certified record, but it was included in 

an attachment to N.E.M.’s petition for allowance of appeal. 

3 Although the juvenile court did not provide a citation at the hearing, it appears the court 

was referencing the statutory presumption in 42 Pa.C.S. §6341(b) (“Finding of 

delinquency”), which provides in relevant part: “In the absence of evidence to the contrary, 

evidence of the commission of acts which constitute a felony shall be sufficient to sustain 

a finding that the child is in need of treatment, supervision or rehabilitation.” 42 Pa.C.S. 

(continued...)
[J-41A-2023 and J-41B-2023] [MO: Donohue, J.] - 4

The court went on to explain N.E.M. committed “two separate offenses[,]” the 

second of which “escalated to violence.” Id. at 3-4. The court then found, “[b]ased upon 

this young man’s – the violence committed in this case[,] I think he’s a danger to the 

community. So the motion [to reconsider] is denied.” Id. at 4. The court thus made clear 

on the record its finding N.E.M. was in need of treatment, rehabilitation, and supervision, 

as well as its concern his violent behavior presented a danger to the community.4 These 

express findings also provide insight into why the juvenile court believed out-of-home 

placement was the proper course. 

Then, at the August 11, 2022 hearing, the court heard testimony from N.E.M.’s 

probation officer, who explained he was “denied from both Adelph[o]i and Abraxas 

[residential treatment facilities (RTFs)] due to his history of aggression, impulsivity, and 

not being med compliant.” N.T. 8/11/2022 at 3-4. She explained a RTF was not 

recommended, but that N.E.M. “would benefit from living in a setting that can provide 

close supervision, such as he does not run away and will attend school daily.” Id. at 4. 

She further stated “[i]t is medically necessary that [N.E.M.] is to receive drug and alcohol 

relapse support[, and] for [N.E.M.] to receive psychiatric medication management.” Id. 

The probation officer also recommended the child’s “educational placement provide all 

accommodations identified as needed on his IEP.” Id. Finally, while she acknowledged 

N.E.M.’s mother was willing to take him home if that were an option, the probation officer 

concluded “the only thing we have left really is for -- to commit him to the state at this 

§6341(b); see also Trial Court Op. at 3, citing In re: C.B., 241 A.3d 677 (Pa. Super. 2020)

(discussing 42 Pa.C.S. §6341(b)).

4 The court emphasized these findings in its Rule 1925(a) opinion, stating: “The first 

incident was violent. The second incident escalated quickly to a much more dangerous 

level of violence[.]” Trial Court Op. at 3. It also reiterated “this court found that N.M. is a 

danger to the community.” Id.
[J-41A-2023 and J-41B-2023] [MO: Donohue, J.] - 5

point.” Id. After hearing argument from counsel for N.E.M. and the Commonwealth, the 

juvenile court judge stated his “previous ruling stands.” Id. at 8. He elaborated:

[N.E.M.]’s going to be committed to the state with appropriate services. He 

has to be in a secure facility. So hopefully we can get him some mental 

health treatment wherever he goes. You guys can try to craft up a plan 

depending upon how long he’s there. . . . I will listen to arguments regarding 

the plan. But for now, [with] actions come consequences.

Id. at 8-9.

This excerpt from the hearing transcript again demonstrates the court’s concern 

with the safety of the community and the need to provide N.E.M. with proper treatment, 

as well as the court’s purpose in imposing “consequences” for his crimes. And of course, 

the juvenile court judge — who sees the child, victim, and other witnesses in person at 

the hearing — is in the best position to make these determinations. Nonetheless, while I 

do not doubt the juvenile court’s intentions to impose a just disposition, the rules are the 

rules, and Rule 512(D) requires a more explicit statement on the record.

I am likewise skeptical that we can say for sure what the Superior Court did (or did 

not) consider based on its per curiam order. But see Majority Opinion at 15. Like the 

majority, I am “confident that the Superior Court understands that the fundamental 

purposes of intermediate appellate court review are to promote adherence to the rule of 

law, correct lower court errors and assist in the development of the law.” Id. at 20-21. 

Thus, although its per curiam order provided no explanation, I am sure the Superior 

Court’s determination was thoughtful and well-considered.

5 But to the extent there is 

confusion whether Rule 1612 requires expedited appellate review, today’s decision 

clears up any questions. And because the record did not include all of the information 

5 The Superior Court’s order directing the juvenile court to supplement the record with 

transcripts of the July 26 and August 11 hearings suggests the appellate panel at least

considered the underlying merits of N.E.M.’s petition. See 8/26/2022 Order, In re: N.E.M., 

87 EDM 2022 (per curiam).
[J-41A-2023 and J-41B-2023] [MO: Donohue, J.] - 6

required by Rule 512, I agree with the majority the proper course would have been to 

“order[] the juvenile court to author an opinion compliant with Rule 515 immediately so 

that N.E.M. would have had the benefit of the expedited review of his out-of-home 

placement to which he was entitled.” Id. at 20.

Thus, although I disagree with the majority’s characterization of how the lower 

courts performed their duties in this case, I agree with its legal holdings and disposition. 

I therefore join its opinion, with the qualifications expressed above.

Justices Mundy and Brobson join this concurring opinion.